Thompson and Noble

[2017] FamCA 358

FAMILY COURT OF AUSTRALIA

THOMPSON & NOBLE [2017] FamCA 358

FAMILY LAW – PROPERTY – de facto relationship – where the application for consent orders has been filed outside the standard application period – where leave is granted to the applicant to file the application out of time – final property orders made – just and equitable

Family Law Act 1975 (Cth) ss 44(5), 44(6)

APPLICANT: Mr Thompson

RESPONDENT: Ms Noble

FILE NUMBER: MLC 1335 of 2017

DATE DELIVERED: 2 May 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 2 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Villella

SOLICITOR FOR THE APPLICANT: Burrell Family Law

THE RESPONDENT: In Person

Orders

1. That pursuant to s44(6) of the Family Law Act 1975 leave be granted to the parties to proceed out of time. 

BY CONSENT IT IS ORDERED:

1. That within 7 days of the date of these orders the Applicant pay the Respondent the sum of $11,750.00 (“the payment”).

2. That contemporaneously with the payment ;

   (a)The Respondent shall vacate the property at B Street, Suburb C (“the Suburb C property”).

   (b)The Applicant shall have sole occupation of the property.

3. That in default of the Payment the Suburb C property be immediately sold, as agreed between the parties, and the proceeds of sale be applied:-

   (a)Firstly, to pay all costs, commissions and expenses of the sale;

   (b)Secondly, to discharge the mortgage and any other encumbrance affecting the property;

   (c)Thirdly, to pay to the Respondent so much of the payment as is then outstanding together with interest thereon at the current rate prescribed under the Family Law Act adjusted monthly from the date;

   (d)Fourthly, the balance to Applicant.

4. That within 7 days of the date of these orders the Applicant do all acts and things to transfer to the Respondent, at the expense of the Applicant, the Motor vehicle1, motor vehicle Registration …

5. That the Applicant will retain and the Respondent relinquishes any interest in the following:

   (a)the business D Pty Ltd;

   (b)the entity Company E;

   (c)the Thompson Family Trust;

   (d)his Telstra Shares;

   (e)his savings;

   (f)the furniture and effects in his possession;

   (g)his superannuation.

6. That the Respondent will retain and the Applicant relinquishes any interest in the following:

   (a)her savings;

   (b)the furniture and effects in her possession;

   (c)her Superannuation.

7. That the Applicant will be responsible for and indemnify the Respondent in respect of any liabilities in his name.

8. That the Respondent will be responsible for and indemnify the Applicant in respect of any liabilities in her name.

9. That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

   (a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders.

   (b)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.

   (c)insurance policies remain the sole property of the owner named therein.

   (d)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

   (e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

10. That the Minutes of Consent Orders remain on the Court file.

THE COURT NOTES:

A.That the parties intend these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thompson & Noble has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1335 of 2017

Mr Thompson

Applicant

And

Ms Noble

Respondent

REASONS FOR JUDGMENT

1. The matter of Thompson & Noble comes before the Court today upon an application for consent orders filed on behalf of the applicant on 14 February 2017. That application seeks that final property orders be made so as to finalise the financial relationship between the applicant and the respondent. That application is made out of time and so the parties come to Court today seeking leave, pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”) to enable the Court to finalise their financial dispute.

2. Section 44(5) of the Act provides that a party to a de facto relationship may apply for an order under the Act for the alteration of property interests only if the application is made within the period of two years after the end of the de facto relationship. That is that is referred to as the standard application period.

3. Section 44(6) of the Act provides that the Court may grant a party leave to apply after the end of the standard application period if the Court is satisfied that hardship would be caused to the party or to a child if leave were not granted. The Court is required to consider the reasons for any delay in making an application, the prejudice to the other party, and the basis of any prima facie case. None of those matters are relevant in the current application given that the parties come to Court together seeking orders by consent, and seeking the leave of the Court to have those orders made.

4. Hardship is not simply a matter of financial hardship.  It may also be the fact that parties own property together, that they no longer live together, and that it is no longer appropriate that they own property together.  Hardship can also simply be a matter that the parties want to bring an end to their financial relationship, and absent the grant of leave of the Court would not be able to do so.  That is the circumstance that presents itself in the current application.  The parties are keen to resolve their financial dispute, and say to the Court that it would cause them hardship if they were not able to finalise the issues between them.  The delay in bringing the application is of relatively short duration.  The parties having separated in April 2014.  They are approximated ten months out of time.

5. Having regard to the submissions made on behalf of the applicant and by the respondent, I am satisfied that it is appropriate that leave be granted pursuant to s 44(6) of the Act.

6. Turning, then, to the proposed property orders, the background to those orders is as follows. 

7. The applicant is aged 59 years.  His employment is stated as company director.  He draws an income from the business operated by him of approximately $55,000 per annum. 

8. The respondent is aged 52 years.  She works in administration.  I am told that she is currently working approximately 30 hours per week and is looking to build upon her work hours.  She has expressed to the Court some optimism as to her future potential income earning capacity. 

9. The parties commenced their cohabitation in November 2010 and as I have already noted separated in April 2014.  There are no children of the relationship.

10. I am told, and it is common ground between the parties, that the applicant had greater valued assets than the respondent at the commencement of the relationship.  He had equity in a property as well as his business and superannuation interests. 

11. The respondent informed me that she had a motor vehicle valued at approximately $7,000.  She had chattels that she valued at approximately $20,000 as well as some savings.  Nonetheless, it is conceded that there was a significant disparity in the initial contributions made by each. 

12. The proposed orders provide for a motor vehicle currently registered in the applicant’s name to be transferred to the respondent, and otherwise make provision for a payment to her.

13. Having regard to the history of the matter and the submissions made as to the effect of the proposed adjustment, I am satisfied that the proposed orders are just an equitable. I will make orders in the terms of the proposed orders.  They will be marked with the letter A.  They will remain on the Court file, and I direct that the applicant engross and file the orders at Court within seven days.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 2 May 2017.

Associate: 

Date:  2 May 2017